//
[2026] QSC 39
General information, not legal advice.
Supreme Court of Queensland
2026-03-16
Johnstone J
Original judgment source is linked above.
[2] At the time of her death the applicant's mother was the registered proprietor of land situated at 396 Wyndham Creek Road, Mt Garnet in Queensland.
[3] On 20 December 1999, the first respondent lodged a caveat over the land with dealing number 703769835 which has remained on the title ever since.
[4] By this application, the applicant applies for an order pursuant to s 127(1) of the Land Title Act 1994 (Qld), to remove the caveat.
[5] As one might expect, where a caveat has existed on a property for almost twenty-six years undisturbed, there is a long and relatively complex history to the matter.
[6] When this application was filed, the applicant sought relief against three respondents.
[7] The first respondent, being Ms Ford, resides at the property. She does so, apparently, with the named second respondent Mr Dunn. Mr Dunn has played no part in the proceeding and has never appeared either personally or represented, at any directions hearing. Mr Dunn did not file any evidence and did not seek to appear at the return of this application. Ms Ford requested that a video link be made available to Mr Dunn, which it was, but Mr Dunn did not utilise that link.
[8] The third respondent is the son of Ms Ford. He also has played no role in the proceeding and he did not appear at the application. He did not file any evidence.
[9] Ms Ford represented herself as she has done the entire way through the proceeding. She has, by her own admission, received advice and assistance from LawRight and a solicitor from LawRight has, on her behalf, drafted written submissions on two occasions. A good portion of those written submissions was devoted to her view that Mr Dunn does not have capacity sufficient to understand the claim made against him. In her written submissions, Ms Ford proposed orders directing the question of Mr Dunn's capacity to respond to this application be determined in the Queensland Civil and Administrative Tribunal (QCAT). She also sought orders that the proceeding otherwise be stayed pending the filing by her of an application in QCAT to, amongst other things, determine Mr Dunn's capacity.
[10] Despite those submissions, in her affidavit dated 14 February 2026 Ms Ford in fact exhibited[3] an application dated 13 February 2026 which Ms Ford said she has filed with QCAT and which seeks the determination by QCAT of the question of Mr Dunn's capacity.
[11] When the matter came on before me for hearing, I raised with both parties how they wished to proceed having regard to the submissions made by Ms Ford. In response, counsel for the applicant conceded that the applicant in fact did not seek any relief against the second or third respondents and that the only relief the applicant sought was the removal of the caveat which had been lodged by Ms Ford.
[12] As I will explain, there is a separate proceeding which had been commenced in the District Court in which the second respondent, Mr Dunn, was the second plaintiff and though not a party, certain declaratory relief was also sought on behalf of the third respondent in that proceeding. It may have been because of that that the applicant joined Mr Dunn and Mr Francis Ford as parties.
[13] In any in event, following that concession, by counsel for the applicant made an instanter application for an order under r 304(5) of the Uniform Civil Procedure Rules 1999 (UCPR) for leave to discontinue against the second and third respondents.
[14] Ms Ford did not oppose that application and I therefore made orders granting the applicant leave to discontinue the present application against the second and third respondents and I ordered pursuant to r 307 of the UCPR that the applicant pay the costs of the second and third respondents to be assessed on the standard basis.
[15] The story relevant to this application begins on 21 December 1989 when Ms Ford and Ms Roslyn Lesleigh Haydon purchased a lease issued under the Miners Homestead Leases Act 1913-1986 in respect of the land then described as an area of 60 acres on Wyndham Creek 11/2 miles N.E. of Brownville, MHPL3884.
[16] Both the Contract of Sale and the Change of Ownership form each dated 2 February 1990 were in evidence. The purchasers did not indicate on that Change of Ownership form whether or not they purchased the lease as joint tenants or tenants in common, however nothing turns on this because it is common ground that on 21 September 1990, by executing a document called a 'Form No. 8' made under the Miners Homestead Leases Act, a stamped copy of which was also in evidence, Ms Ford and Ms Haydon transferred to Ms Haydon alone, all of their (joint) right title and interest in the land.
[17] Later, on 15 September 1998, the leasehold interest was converted to freehold and Ms Haydon became registered as the proprietor of the land now described as Lot 4 on Crown Plan 884804.
[18] On 20 December 1999, Ms Ford registered the caveat the subject of this application and as a consequence of that registration, under s 105(2) of the Land Title Act 1994, was obliged to commence proceedings within six months of that date.
[19] A Claim and Statement of Claim were filed in the District Court in Cairns (CLD49/00) on 17 March 2000. Subsequently a Defence and Counter Claim was filed on 27 April 2000 and a Reply and Answer was filed on 16 May 2000. All of the pleadings were exhibited[4] to the affidavit of the applicant.
[20] That was the last day on which a step was taken in that proceeding.
[21] Accordingly, by operation of r 389(2) of the UCPR the plaintiffs in that proceeding being Ms Ford and Mr Dunn were unable to take a step in the proceeding after 16 May 2002 without the leave of the Court. No leave was ever sought. Accordingly, that proceeding has been stayed by operation of the UCPR since May 2002.[5]
[22] In oral submissions, Ms Ford said that the District Court proceeding had been consolidated with an earlier proceeding that had been commenced by her son. Whilst not the subject of direct evidence, it seems that prior to Ms Ford lodging a caveat, her son had also lodged a caveat over the same land and filed some form of a claim in support of the interest claimed in that caveat.
[23] The extract of the title search in evidence does not suggest that any such caveat was lodged and the only evidence relating to the consolidation of the District Court proceeding with another proceeding is a copy of a Notice of Intention to Proceed bearing the date 8 January 2003 prepared by Bottoms English, the then solicitors for the plaintiffs which stated "the plaintiffs hereby give notice to (sic) Rule 389 of the Uniform Civil Procedure Rules of their intention to proceed in this matter by making application for the consolidation of Proceeding No. D49 of 2000 with Proceeding D73 of 1999."
[24] A copy of the Queensland Courts Court File index of "CLD49/00" was also in evidence, which reveals that on 9 January 2003 the Notice to Proceed was filed however that is the last document recorded as having been filed in that proceeding. There is no evidence that such an application was in fact pursued.
[25] Ms Ford also put in evidence[6] two letters from Bottoms English addressed to her, one dated 3 March 2008 which stated that the firm had reviewed the file and noted that the last time Ms Ford had been in contact with it was 24 August 2004.
[26] The letter contained some terms of an offer that that firm had been instructed to make in order to compromise the proceeding. Ms Ford responded to that letter on 13 March 2008.[7]
[27] The second letter was sent by Bottoms English dated 3 August 2010.[8] That letter contained a statement that that firm had not received instructions since early 2008. In that letter the firm said "accordingly, we are now in the process of closing your file. It is quite clear that no-one is likely to change their mind and you are not in a position to fund active action. The resultant delay will have created even more evidentiary problems."
[28] Ms Haydon died on 13 November 2022 and probate was granted to the applicant on 30 May 2023.
[29] On 4 October 2023 the applicant's solicitors wrote to Ms Ford enclosing a Notice of Discontinuance in relation to the District Court proceeding which they requested she sign and return. It may have been their intention that upon filing the Notice of Discontinuance, steps would be taken to have the caveat removed. Ms Ford did not sign the Notice of Discontinuance.
[30] This application was filed on 29 April 2025.
[31] When the matter came before me for directions in September 2025 prior to the trial I had listed for a hearing in November 2025 (which listing was subsequently vacated), I raised with the parties whether an application might be made to transfer the District Court proceeding to the Supreme Court so that that proceeding and this application could be dealt with at the same time given the similarity of issues raised and the differing legal and evidentiary onuses applying to the two proceedings.
[32] Perhaps as a result of that, the solicitors for the applicant wrote to Ms Ford on 14 October 2025, and said[9] (relevantly):
We consider that it would be convenient to the court, upon our client's application to remove the caveat, to determine any application by you for leave to proceed in the District Court proceeding. The transfer of any application by you for leave to proceed is possible by order of the Supreme Court made under s 25(1) of the Civil Proceedings Act.
We invite you to advise us, by return, whether or not you intend to apply for leave to proceed. If you do, we confirm that we will consent to an order being made for the transfer of that application to the Supreme Court pursuant to s 25(1) of the Civil Proceedings Act. The application of course calls for the exercise of judicial discretion.
If you do not intend to apply for leave to proceed, in light of what we say above, we do not consider that our client's application will require two days of hearing. We will raise this issue with the court on the next mention of the application on 27 October 2025, in order to ensure the most efficient use of the court's resources.
Please let us have your response by no later than 5:00pm on Friday, 17 October 2025."
[33] On 4 October 2025, Ms Ford responded[10] by email and, in essence, said that she had requested legal advice from LawRight but that LawRight was unable to provide her with advice within the requested timeframe. Ms Ford said also that she may not be in a position to indicate her response by the next directions hearing date being 27 October 2025.
[34] On 24 October 2025, by letter, Ms Ford said[11] "I do not think re-enlivening the District Court proceedings will be helpful at this moment. While I maintain that I have an interest in the property, the relevant facts underlying my claim have changed significantly in the 25 years since those proceedings were commenced. If the proceedings were re-enlivened, it would require essentially brand-new pleadings, and for new parties to be substituted, in addition to satisfying the court that leave to proceed ought to be granted. There would be a lot of procedural and technical difficulties associated with this."
[35] When the matter came back for directions in October 2025, Ms Ford's position remained unclear. I made a direction in these terms: "Should all or any of the respondents wish to assert an entitlement to any declaratory order by way of final relief in this proceeding, such respondent is to file and serve any application by 30 January 2026."
[36] Despite these opportunities, Ms Ford took no steps to seek to have the District Court proceeding transferred so that it could be determined along with this application, nor did she seek any other relief. Ms Ford did refer to the fact that she may, in the future, make a claim as an adverse possessor, but no such claim was advanced before me.
[37] In her written submissions[12], Ms Ford did say the following:
The steps which I wish to take to resolve the issues associated with this matter are:
a. Filing an application on behalf of myself and the Second Respondent for registration as the registered owner of the property under section 99(1) of the Land Titles (sic_) Act 1994 (Qld)._
b. Once the above application is lodged, lodge a fresh caveat on behalf of myself and the Second Respondent, seeking to protect our interests as adverse possessors;
c. File a counter-application in response to this application seeking a declaration that:
The First and Second Respondents are entitled as adverse possessors under Part 6, Division 5 of the Land Title Act 1994 (Qld) to be registered as the owners of an estate in fee simple in the land described as Lot 4 on Crown Plan 884804 and having title reference 50234767
d. Make an application in the existing District Court proceedings seeking orders that:
i. The parties be given leave to take a step in the proceedings pursuant to UCPR 389;
ii. The First and Second Plaintiff's be given leave to amend the Claim and Statement of Claim (enabling amendments to seek an order that the property is held on trust by the deceased for the First Plaintiff);
iii. The proceedings be transferred to the Supreme Court of Queensland (as it is appropriate for the two matters to be heard together).
[38] In the introduction to her written submissions Ms Ford said that they have been[13] "prepared with legal assistance, they are not intended to be comprehensive nor are they an equivalent substitute for the type and quality of submissions which would be prepared if the First Respondent were fully represented and had the assistance of Counsel."
[39] Be that as it may, it is axiomatic that a Court cannot proceed on the basis of submissions that have not been made, or which could not be made because they would be contrary to the evidence.
[40] Ms Ford's stated intention in subparagraph (d) of her written submissions set out in paragraph [37] above is contrary to her own evidence. As for her intention stated in subparagraphs (a) and (b) set out in that paragraph, they are matters which, even if pursued by Ms ford, do not affect the application brought by the applicant in relation to the caveat lodged. As for paragraph (c), putting to one side the concept of a "counter-application", if the application identified is one which Ms Ford intends to make, there is no obvious reason why it should be filed in this proceeding.
[41] Apart from those submissions, and despite her letter of 24 October 2025, Ms Ford did not invite me to disregard her pleaded case in the District Court proceeding. Further, because of Ms Ford's stated intention in subparagraph (d) of her submissions set out in paragraph [37] above, I have considered both her claimed interest as pleaded in the District Court proceeding, and I have also considered any evidence she led which may support the pleaded claim in so far as it may relate to the interest claimed in the caveat.
"Constructive, resulting or implied trust between Roslyn Haydon and Frances Claire Ford arising from monetary and non-monetary contributions to the land."
[43] The Statement of Claim filed in the District Court Proceeding in support of this alleged interest is only 14 paragraphs in length. It was settled by counsel.
[44] It is appropriate to observe first that the relevant relief claimed in the statement of claim is for:
"a declaration that the defendant holds the land as constructive trustee for:-
(i) Frank Ford (although in the Claim it says Francis Theseus Ford);
[45] Immediately it would be observed that no claim for a declaration in relation to a resulting or implied trust is sought.
[46] The principal relief sought in the proceeding seems to be a common intention constructive trust. But the pleaded foundation for that claim is difficult to decipher.
[47] As I have also said, Francis Theseus (Frank) Ford is not a party to that proceeding.
[48] As to the balance of the relevant pleaded allegations Ms Ford pleaded the following:
"4. The purchase price of the land of FIFTEEN THOUSAND DOLLARS ($15,000.00) was paid as follows:-
(a) the first plaintiff paid the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00);
(b) the first plaintiff handed to the defendant, prior to settlement, the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) which had been provided to the plaintiff by Stan Levelle;
(c) The monies provided by Stan Levelle and paid to the defendant was on the basis that the defendant would hold her interest on trust for Frank Ford.
(a) the defendant would be registered as a part-owner of the land but such interest would be held on trust for Frank Ford;
(b) that such interest the defendant held on trust for Frank Ford would be held by her until he attained the age of 21 years; (sic)
[49] There are a number of curiosities raised by this series of pleaded allegations.
[50] First and most obviously there is no pleaded allegation to the effect that the defendant ever agreed that she was to hold any interest in the land on trust for Frank Ford.
[51] Further it is by no means clear what is meant by the allegations in paragraphs 4(a) and (b). For example is it intended to allege that both amounts of $7,500.00 making up the purchase price came from the plaintiff or is it accepted that half the purchase price was paid by the defendant? The position is complicated by the pleaded allegation in paragraph 5 given that Ms Ford subsequently transferred her interest (not in 1989 as pleaded but in 1990) to the defendant. In addition, the pleading in paragraph 5 seems to suggest that Ms Haydon would be registered as part owner of the land but only for the purposes of holding her interest on trust for Frank Ford. If this was the intention of the pleading then the question arises as to whether, following the subsequent transfer of Ms Ford's interest in the land to the defendant, it is Ms Ford's case that only half the land was held on trust for Frank Ford or whether the entirety of the land would be subject to the alleged trust in favour of her son.
[52] To some extent these issues are complicated further by the manner in which paragraph 8 is pleaded. Plainly, the defendant cannot hold an interest on trust for herself. It may be that the reference to defendant and the "first defendant" was an error and the pleader intended to plead that the defendant would hold such interest on trust for the first plaintiff. However if that is the case then that pleading would be inconsistent with paragraph 5.
[53] But none of these pleaded allegations relate to the caveatable interest identified in the caveat.
[54] The relevant pleading relating to that interest is pleaded in paragraph 9 (although it follows the words "IN THE ALTERNATIVE"). Ms Ford pleads:
"9. Between 1996 and the date of this pleading the plaintiffs have permanently resided on the land, made improvements to the land, expended money on the land and on the maintenance of the improvements on the land, expended their own labour and skill in improving and maintaining the land and its improvements.
Particulars of moneys expended are set out in the schedule annexed hereto and marked "A"."
[55] Annexure A is a table with four columns headed "date" "provider" "particulars" and "costs". Ms Ford did not make any particular reference to this schedule in her submissions or affidavit evidence. She did not swear to its truth although in her first affidavit, she did exhibit a document she described as a 'schedule of work done and non-removable expenses'.[15] This document is undated, and no evidence was given as to for whom it was prepared. Whilst this document differs from Annexure A, I regard it as consistent with Ms Ford's position that she and/or Mr Dunn maintain that they incurred expenditure and carried out improvements on the land.
[56] Nevertheless it is Annexure A that has been pleaded. It does not need any great consideration for the purposes of this application. It is sufficient to note that the table contains no detail as to how each of the items referred to in the "particulars" column were utilised on the land and indeed many of the entries are not capable of being understood at all. For example, there are many entries relating to "McDonald Bros. Store" and the particular given is "plumbing parts". There are items simply described as "parts" and amounts particularised vary from as little as $5.50 to and amount of $1,257.77 said to have been incurred on 9 April 1998 from McDonald Bros. Store for "building parts, rope, roof screws, 20 kg stud".
[57] Returning to the Statement of Claim, there is no allegation pleaded which connects the allegation as to the improvements made and money expended to the equitable interest as beneficiary of a constructive trust which is the relief pleaded as claimed on the basis of that allegation.
[58] What is pleaded is an allegation in paragraph 10 that the defendant abandoned the land in July 1991 and, an allegation in paragraph 11 that between 1991 and 1999 that the defendant acquiesced in allowing the plaintiffs to live on the land and make improvements in the land "in the full knowledge of the entitlement of the plaintiff's (sic) and Frank Ford." How that alleged knowledge was acquired is not pleaded.
"By reason of the defendant's acquiescence and the matters pleaded in paragraph 9 hereof the plaintiffs have moved to their detriment by expending money and making the improvements to the land referred to herein and the defendant is thereby estopped from making any claim to an equitable interest in the land."
[60] It is rather difficult to understand what the pleader meant by this allegation particularly in circumstances where no claim for declaratory relief as to the alleged estoppel is made.
[61] Ms Ford also does not plead any allegation that any such claim to an equitable interest in the land was being asserted by Ms Haydon at the time. That might be thought unsurprising given Ms Haydon was the registered proprietor of the land and, Ms Ford's interest in the land had, apparently, ended in 1990 when she voluntarily transferred her interest to Ms Haydon. Whatever might have been the intention of that pleaded allegation, it is not an allegation sufficient to establish the claim for a declaration that Ms Haydon held the entirety of the land on constructive trust for her son Frank Ford, or in the alternative Ms Ford or in the further alternative Ms Ford and Mr Dunn.
[62] In her submissions Ms Ford did not seek to defend the manner in which her case had been pleaded in the District Court.
[63] In particular she did not, in either of her affidavits read in the application, give evidence consistent with the allegations pleaded in paragraphs 4 and 5 of the Statement of Claim.
[64] Rather, in her affidavit of 14 February 2026 she said[16] "I paid $7,500 towards the purchase price of the land. I obtained these funds from my savings. I then handed to the deceased the remaining $7,500 of the purchase price."
[65] In my view, and based on my exchanges with Ms Ford, her reference to "remaining" creates confusion. It seems most likely that the reference to "remaining" was to the $7,500 needed to make up the balance of $15,000. I infer from this evidence an acceptance that the other amount of $7,500 was paid by Ms Haydon.
[66] Considering paragraphs 7 and 8 of the pleading, it seems to follow that the intention of the pleading was that when Ms Ford transferred "her interest" in the land and (as pleaded in paragraph 8) that the defendant would hold "such interest on trust for the first [plaintiff]..." the intention was that the trust alleged to arise was in relation only to that half interest and not to the whole of the land.
[67] Ms Ford gave evidence[17] that she "made the transfer because of pressure placed on me by Peter Gibbons, the deceased's partner" but no evidence has been given by Ms Ford as to what this alleged pressure might have been. It does not form any part of her pleaded claim. That said it is useful at this stage to consider some further facts relating to the time period between 1990 and 2000 which are not in dispute.
[68] On 11 April 1991, Ms Ford was sentenced to three years imprisonment for production and possession of marijuana. In her affidavit[18] Ms Ford exhibited the sentencing remarks of then Mr Justice de Jersey where his Honour remarked that she should spend "about 18 months in jail".
[69] From the bar table, Ms Ford told me that whilst she was incarcerated Ms Haydon had agreed to look after Frank who was about 14 or 15 at the time, but that arrangement only lasted for about a month whereupon Frank went to live with another relative and eventually his uncle. In a somewhat cryptic fashion Ms Ford also made submissions to me that Frank also was incarcerated and initially described his incarceration as being as a result of the death of his uncle. When I queried what was meant by this submission Ms Ford simply said that Frank "shot him".
[70] There was evidence before me that Frank was sentenced as a juvenile to 10 years imprisonment but there was no evidence as to the dates upon which either Ms Ford or her son were released from custody. In any event Ms Ford asserts that she moved back on to the land in 1996 together with Mr Dunn with whom she had formed a friendship by this stage. It is not clear on the evidence as to whether or not Frank ever returned to the property.
[71] There is evidence that in about 1996, Ms Ford and Mr Dunn obtained financial assistance through the then Commonwealth agency called Centrelink for something described as the "Self-Employment Development Scheme" which I was told by Ms Ford was a scheme whereby the Commonwealth provided limited funding to enable people to develop a business whilst receiving unemployment benefits. Ms Ford said that it was with those funds that she and Mr Dunn set about establishing some form of mango orchard on the land.
[72] Ms Ford's evidence is otherwise generally silent as to the terms on which she and Mr Dunn were permitted to remain on the property.
[73] In her Defence filed in the District Court proceeding, Ms Haydon pleaded in paragraph 4 as part of her response to paragraphs 7 and 8 of the statement of claim that the reason why Ms Ford transferred her interest in the land back to Ms Haydon was because Ms Haydon had provided to Ms Ford the sum of approximately $13,000 for the purposes of Ms Ford's legal representation in her criminal proceeding.
[74] Ms Haydon also pleaded that she provided $15,000 as surety for bail. Ms Haydon pleaded that the transfer of land was in partial recompense of that debt.
[75] Ms Ford denied these allegations in oral submissions but did not lead any meaningful evidence as to why the land was transferred in those circumstances nor the terms upon which she and Mr Dunn were permitted to remain on the land.
[76] Ms Ford also exhibited evidence of a Notice to Leave served by Ms Haydon on Ms Ford and Mr Dunn dated 22 July 1998. There is also evidence of orders made by the Small Claims Tribunal on 19 November 1998 and 4 March 1999 relating to Ms Haydon's claim for possession. It seems the last order made by the Small Claims Tribunal was 31 March 1999 at which time Ms Ford's application was dismissed. A document[19] which appears to be reasons signed by Mr Ross Risson records that the "dispute is just part of a much wider dispute involving the title to the property. This Tribunal has no jurisdiction to determine that issue." Reference is also made in those reasons to the fact that the caveat had been lodged on the property in proceedings commenced in the District Court as the basis upon which Ms Haydon's Claim for Possession was dismissed.
[77] In her affidavit evidence Ms Ford also referred to payment of rates from time to time but it is not entirely clear what her evidence about this is and it was not clarified by her in oral submissions.
[78] In her first affidavit[20] Ms Ford gave evidence of various attempts she says she made in 1999 to pay the rates on the land, some of which appear to have been successful. Ms Ford also exhibited a letter addressed to her then solicitor in which she said:
"I did pay the rates in September 1998, but it was returned to me as, apparently, [Ms Haydon] also paid those same rates on that occasion. I have included here my respond to [Ms Haydon's] DEFENCE concerning RATES..."
[79] That letter seems to have been instructions given to her solicitor dated 17 May 1999.[21] Whatever was intended to be done with that document, the instructions in it were not pleaded in the Reply and Answer filed.
[80] The best I can discern is that Ms Ford endeavoured to pay the rates for the land whilst she resided on it, and in submissions she told me that she considered that she was entitled to remain on the land and pay those rates not as a condition for her remaining on the land but as an incident of the fact that she was entitled to remain on the land. Whatever may be the position in relation to the payment of rates it seems to be conceded by Ms Ford that she has not paid the rates since her last attempt to pay them on 13 December 2024.
[81] It is against this rather confusing history that the relief claimed in the application falls to be considered.
[82] Section 127 of the Land Title Act provides the specific power for the Supreme Court to order the removal of a caveat.
[83] An application to remove a caveat is determined upon the same principles as an application for an interlocutory injunction. Holmes JA (as her Honour then was) in Cousins Securities Pty Ltd v CEC Group Ltd[22] said:
...Re Jorss' Caveat made it plain that the onus was on the caveator to satisfy the court, as for an injunction, that there was a serious question to be tried and that the balance of convenience favoured the retention of the caveat on the title. Australian Broadcasting Corporation v O'Neill had clarified that the former involved showing "a sufficient likelihood of success to justify in the circumstances the preservation of the status quo".
[84] In written submissions, the applicant pointed to Ms Ford's failure to advance the District Court proceeding as indicative of an intention to maintain the caveat indefinitely. In my view the more essential issue is to what extent Ms Ford's conduct to date might be relevant in considering the question of whether there is a sufficient likelihood of her achieving success in establishing her claimed interest. In my view, her delay in prosecuting her claim as well as her failure to accept the invitation of the applicant to transfer the District Court proceeding in circumstances where the applicant would not oppose an application for leave to proceed alone demonstrates that Ms Ford has no prospect of success.
[85] In short, success in an action cannot be achieved if the moving party does not ask the Court to decide their claim.
[86] Coupled with this almost insurmountable hurdle is the fact that in her letter dated 24 October 2025, Ms Ford expressly disavowed her current pleaded case.
[87] Having done so, there is no case currently before any court by which the applicant can properly understand what the factual basis is upon which Ms Ford relies to justify the caveatable interest she claims, and has claimed since 1999.
[88] The applicant referred to Genrich v Maitland Holdings Pty Ltd[23] where Andrews J (at said that the purpose of maintaining a caveat over land "is to preserve the status quo while questions as to tile to land or an interest in land are investigated; to protect the rights of any person having or claiming an interest in the land (Wheeler v. Baldwin [1934] HCA 58; (1934-1935) 52 C.L.R. 609 at p. 622)".
[89] The applicant also referred in Hoon v Westpoint Management Ltd[24], in which Corboy J said:
[54] The authorities to which reference has been made indicate that the purpose of a caveat is to facilitate vindication of a claimed estate or interest in land. It follows, in my view, that a caveat may be removed where the caveator fails to take reasonable steps to vindicate its claim in the face of an adverse or inconsistent assertion of title or proposed dealing. Further, I consider that delay in vindicating a claimed estate or interest may be relevant not merely where the caveator failed to respond to an adverse claim (as to which see, for example, McCourt v National Australia Bank Ltd [2010] WASC 121 [25] (Murphy J)) but also where the caveator failed to take reasonable and timely steps to establish the title to an estate or interest by an action for specific performance or similar proceedings.
[90] In Hoon, the underlying proceeding had been struck out for want of prosecution over the course of about 10 years.
[89] I would have acceded to Paragon's application even if I had found that Ms Hoon had established a prima facie case that she possessed an estate or interest in Apartment 2C. The observations of Anderson J in Custom Credit v Chellaston apply with particular force in this matter. The Action was dismissed after being twice entered onto the inactive list. Ms Hoon took no step to pursue her claim for specific performance for more than four years prior to the December 2008 Order being made. She took no step once that order was pronounced with the result that the Action was dismissed. She has taken no step since the Action was dismissed other than to react to Paragon's application. Consequently, she has had almost ten years in which to vindicate her title to the Apartment 2C. It would, in my view, be contrary to the statutory purpose of a caveat to permit the Caveat to remain on the title to Apartment 2C in those circumstances even if some of the delay in around the mid 2000s can be explained by her personal position. The purpose of the Caveat has been exhausted as Ms Hoon has had ample opportunity to vindicate her claim to the equitable interest to which it referred.
[92] The observation of Anderson J in Custom Credit Corporation Ltd v Chellaston Pty Ltd (Unreported, WASC, Library No 93,0340, 10 June 1993) had been set out earlier in the reasons[25]:
A person cannot by alleging an interest in land and placing a caveat upon it forever prevent dealings in the land by persons claiming registered interests. They must get on and establish to the satisfaction of the courts in fully tried actions that they do have that interest. If this caveat had been lodged in 1990 when the default notice [under a mortgage] had first been served and the Court had at that time directed that the caveat remain in place until the defendants Chellaston and Tactical Holdings had had a reasonable opportunity to prove their interest and entitlement then I think the point would have long since passed between now and then when the Court would have in any event said, "Time enough" and ordered the caveat to be removed.
[93] In modern litigation, with case management systems, it is remarkable that the District Court proceeding has been able to languish for as long as it has. Nevertheless, it is and always has been incumbent on Ms Ford to prosecute her claim expeditiously pursuant to r 5 of the UCPR. Clearly Ms Ford has not complied with her obligations under r 5. Indeed, it is difficult to imagine a plaintiff who has engaged in more profound and obvious delay in prosecuting a claim, particularly a claim commenced in support of an alleged caveatable interest, than Ms Ford.
[94] I agree with approach Corboy J took. In the present case, like in Hoon, Ms Ford has had 25 years to establish her claimed caveatable interest, but she has chosen to do nothing. It is time enough. The caveat ought be removed.
[95] There is another matter which is telling in this context, and which, in my view, when coupled with the observations I have already made, mean the balance of convenience also does not favour Ms Ford.
[96] The applicant is acting in his capacity as executor. Probate was granted on 30 May 2023. Pursuant to s 52(1)(a) and (d) of the Succession Act 1981 (Qld), the applicant has a duty to "collect and get in the real and personal estate of the deceased and administer it according to law" and "distribute the estate of the deceased, subject to the administration thereof, as soon as may be".
[97] Clearly, the maintenance of the caveat will prevent the applicant from discharging his duty. In those circumstances, the fact that Ms Ford has no inclination to pursue the District Court proceeding and therefore no final determination of her claim should not be countenanced by the Court. Whilst it may well have been the case that this issue would not have loomed large in my reasoning had Ms Ford chosen to accept the applicant's invitation last year, to apply for leave to pursue the District Court proceeding, her expressed disinclination so to do works against her.
[98] Finally, the applicant submits that Ms Ford has not offered, at least until, 16 February 2026, an undertaking as to damages. On that date, Ms Ford said[26] "I am open to making an undertaking as to damages and will make one if necessary", no undertaking as given. From other evidence given[27], it would seem such an undertaking would be of little value.
[99] Whilst always a matter of discretion, the failure by a caveator to offer an undertaking will usually, though not always, result in the caveat being removed. The grant of an interlocutory injunction, like the question of whether a caveat should be maintained, are interlocutory decisions which require the consideration of a number of discretionary factors. The nature and strength of the claimed interest sought to be protected by the injunction or the caveat, prior to the final determination, will usually be the starting point for that consideration, as will the potential consequences for the moving party if the injunction is not granted, or for the caveator should the caveat not be ordered to be removed. In considering those potential consequences and the concomitant consideration of the impact on the enjoined party or the caveatee is the question of whether, and to what extent, the affected party can be protected from any loss they may suffer as a result of the restraint visited upon them if, ultimately, the interest claimed by the caveator or enjoining party is not established. A valuable undertaking as to damages provides that protection.
[100] Naturally, it will not always be the case that a valuable undertaking can be offered. Where the strength of the claimed interest appears overwhelming, the absence of value may not be so relevant, but the fact that an undertaking is, nonetheless offered, may be.
[101] Ms Ford has not offered an undertaking as to damages. Even if she had, that would not have been sufficient to cause my discretion to be exercised differently given the profound delay on Ms Ford's part in prosecuting the District Court proceeding, and the absence of any evidence as to the worth of any such undertaking.
[102] The applicant should succeed. I order that the caveat with dealing number 703769835 lodged over the land described as Lot 4 on Crown Plan 884804, title reference 50234767 be removed.
[103] The applicant seeks an order that Ms Ford pay his costs on an indemnity basis.
[104] I am not minded to make such an order. Much of Ms Ford's opposition to the application was based on her concern as to the capacity of Mr Dunn. That was only relevant because Mr Dunn was named as a respondent. It was not until Mr Dunn was removed as a respondent on the day of the hearing (with Ms Ford's consent) that the real issue in dispute could properly be determined.
[105] Whatever might be the reality of Mr Dunn's capacity, it was a matter that Ms Ford had raised consistently in her evidence, and was entitled to raise.
[106] Further, Ms Ford was entitled to resist the application on the basis of her belief as to her interest in the land. Nothing Ms Ford did in my mind raises the type of considerations identified in the well known decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd[28].
[107] Nevertheless costs should follow the event.
[108] I order that the first respondent pay the applicant's costs of and incidental to the application to be assessed on the standard basis.
[109] Finally, I am concerned that the District Court proceeding will remain on the register of the District Court in Cairns. That should not continue indefinitely. I will direct the Registrar of the Supreme Court in Townsville to provide a copy of these reasons to the Civil List Manager of the District Court in Cairns.
[1] Affidavit of Shaen Bryan Haydon filed 29 April 2025, para 5, Ex SBH-1, p 2.
[2] Affidavit of Shaen Bryan Haydon filed 29 April 2025, para 5, Ex SBH-1, p 3-5.
[3] Affidavit of Frances Claire Ford filed 16 February 2026, Ex A, p 2-29.
[4] Affidavit of Shaen Bryan Haydon filed 29 April 2026, para 11(a), Ex SBH-1, p.9 - 25.
[5] Ure v Robertson [2017] QCA 20; [2017] 2 Qd R 566 at [37] (per Bond J).
[6] Affidavit of Frances Claire Ford filed 29 January 2026, Ex FCF-6, p.6-7.
[7] Affidavit of Frances Claire Ford filed 29 January 2026, Ex FCF-6, p.8.
[8] Affidavit of Frances Claire Ford filed 29 January 2026, Ex FCF-6, p.9.
[9] Affidavit of Shaen Bryan Haydon filed 21 October 2025, SBH-2, p 1-3.
[10] Affidavit of Shaen Bryan Haydon filed 21 October 2025, SBH-2, p 4.
[11] Affidavit of Frances Claire Ford filed 16 February 2026, p47.
[12] Exhibit 3, Written Submissions tendered 16 February 2026, para 15.
[13] Exhibit 3, Witten Submissions tendered 16 February 2026.
[14] Affidavit of Shaen Bryan Haydon filed 29 April 2026, para 11(a), Ex SBH-1, p.7.
[15] Affidavit of Frances Claire Ford filed 30 September 2026, FCF-3, p.43-53.
[16] Affidavit of Frances Claire Ford, filed 16 February 2026, at 3.
[17] Affidavit of Frances Claire Ford, filed 16 February 2026, at 4.
[18] Affidavit of Frances Claire Ford, filed 30 September 2025, FCF-1, p 10.
[19] Affidavit of Frances Claire Ford filed 30 September 2025, FCF1, p 39.
[20] Affidavit of Frances Claire Ford filed 30 September 2025, FCF1, para 31.
[21] Affidavit of Frances Claire Ford filed 30 September 2025, FCF1, p. 58.
[23] [1982] Qd R 58, 67.
[24] [2011] WASC 239, 54.
[25] [2011] WASC 239, at [57].
[26] Affidavit of Frances Claire Ford filed 16 February 2025, para 20.
[27] Affidavit of Frances Claire Ford filed 16 February 2025, para 7-8.
Haydon
Ford [2026] QSC 39